Ninth Circuit Orders Charges Reinstated Against Gage and Awand
Las Vegas, Nev. – Barely two weeks ago, the U.S. Attorney's Office argued before the Ninth Circuit Court of Appeals that the trial judge in the fraud case against Noel Gage and Howard Awand had improperly dismissed the indictment. Today, in an eight-line decision, the Ninth Circuit reversed the trial court judge and found that the indictment "must be reinstated."
Visiting Senior U.S. District Court Judge Justin Quackenbush dismissed the fraud case in June 2008 after the government refused to comply with his order to grant immunity to spine surgeon Dr. Mark Kabins. The Government filed an appeal. The Ninth Circuit ruled today that the Government is only required to offer immunity for defense witnesses who will offer testimony that directly contradicts the testimony of a government witness who has been given immunity. The Ninth Circuit stated that because Dr. Kabins would not have directly contradicted a government witness who received immunity, the indictment must be reinstated.
"We are obviously very pleased with the Court's decision," said U.S. Attorney Greg Brower. "We have felt all along that Judge Quackenbush's ruling with respect to Dr. Kabins was erroneous and contrary to the overwhelming weight of case law precedent. Today's ruling not only vindicates our position on the issue we appealed, it puts these important cases back on track toward trial."
Federal criminal fraud and conspiracy charges were filed against Gage and Awand in 2007. The men are accused of being part of a network of Las Vegas physicians and lawyers who cheated clients out of honest services by inflating medical costs, protecting doctors from malpractice lawsuits and sharing kickbacks from legal settlements. The trial against Gage began in February 2008 and lasted for three weeks. The jury deliberated for one week before determining it could not reach a conclusion. During trial, the government presented evidence that Dr. Kabins allegedly participated with Gage and Awand in a conspiracy and scheme to defraud one of Dr. Kabins' patients. Judge Quackenbush dismissed the case, finding that it was unfair the government offered immunity to two other doctors accused of being involved in the conspiracy, but not to Dr. Kabins, whose testimony was expected to contradict government witnesses. The Government refused to grant immunity on the basis that Dr. Kabins did not contradict an immunized government witness and he was an unindicted co-conspirator and a target of the ongoing investigation. In March 2009, Dr. Kabins was charged with fraud and conspiracy for his alleged role in the scheme.
The Ninth Circuit's decision is available at: